Citation Nr: 0736783
Decision Date: 11/23/07 Archive Date: 12/06/07
DOCKET NO. 04-35 611 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for hypertrophy of the
prostate due to Agent Orange exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
G. Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from April 1967 to
July 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2004 rating decision of the
Winston-Salem, North Carolina, Department of Veterans Affairs
(VA) Regional Office (RO), which denied service connection
for hypertrophy of the prostate due to Agent Orange exposure.
FINDING OF FACT
Hypertrophy of the prostate is not attributable to service
nor is it due to Agent Orange exposure.
CONCLUSION OF LAW
Hypertrophy of the prostate was not incurred in or aggravated
by service, may not be presumed to have been incurred in
service, nor is it due to Agent Orange exposure. 8 U.S.C.A.
§§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Assist and Notify
Under the Veterans Claims Assistance Act of 2000 (VCAA), VA
is required to notify the veteran of any evidence that is
necessary to substantiate his claim. This includes notifying
the veteran of the evidence VA will attempt to obtain and
that which the veteran is responsible for submitting. Proper
notice must inform the veteran of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that the VA will seek to provide; (3) that the
veteran is expected to provide; and (4) must ask the veteran
to provide any evidence in his possession that pertains to
the claim. See 38 C.F.R. § 3.159 (2007). These notice
requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability;
a connection between the veteran's service and the
disability; degree of disability; and the effective date of
the disability. See Dingess v. Nicholson, 19 Vet. App. 473
(2006). Such notice must be provided to a veteran before the
initial unfavorable decision on a claim for VA benefits is
issued by the agency of original jurisdiction. Pelegrini v.
Principi, 18 Vet. App. 112, 119 (2004).
Notice errors (either in timing or content) are presumed
prejudicial, but VA can proceed with adjudication if it can
show that the error did not affect the essential fairness of
the adjudication by showing: 1) that any defect was cured by
actual knowledge on the part of the veteran; 2) that a
reasonable person could be expected to understand from the
notice what was needed; or 3) that a benefit could not have
been awarded as a matter of law. Sanders v. Nicholson, 487
F.3d 881 (2007). By letters dated in January 2004 and
February 2004, the veteran was advised in accordance with the
law, prior to the April 2004 rating decision. He was sent
additional notice in March 2005, in accordance with the
requirements of C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the
Court held that VA must also provide notification that a
disability rating and an effective date for the award of
benefits be assigned if service connection is awarded. This
notification was received by the veteran in March 2006.
Moreover, since the preponderance of the evidence is against
the claim on appeal, any question as to the appropriate
disability rating and effective date to be assigned is moot.
The RO has taken appropriate action to comply with the duty
to assist the veteran with the development of his claim. The
record includes VA treatment records, and private treatment
records. There are no known additional records to obtain.
A hearing was offered, scheduled, and the veteran, in
April 2006, withdrew his hearing request. The Board finds
that the record as it stands includes sufficient competent
evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4).
Under these circumstances, the Board finds no further action
is necessary to assist the veteran with his claim.
Service Connection
The veteran asserts that service connection is warranted for
hypertrophy of the prostate due to his exposure to Agent
Orange. The veteran argues that he was exposed to Agent
Orange in Vietnam and that although he does not have prostate
cancer, it is his contention that that his hypertrophy of the
prostate is caused by Agent Orange.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. § 1110. Service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). Service connection for cancer may be
presumed if it is shown to a degree of 10 percent disabling
within the first post service year. 38 U.S.C.A. § 1101, 1112,
1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
The veteran served in the Army in Vietnam and is presumed to
have been exposed to Agent Orange. 38 U.S.C.A. § 1116(f). If
a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected, even though there is no record of such
disease during service, provided further that the rebuttable
presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. §
3.307(d) are also satisfied: chloracne or other acneform
disease consistent with chloracne; Type 2 diabetes; Hodgkin's
disease; multiple myeloma; non-Hodgkin's lymphoma; acute and
subacute peripheral neuropathy; porphyria cutanea tarda;
prostate cancer; respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea); and soft- tissue sarcomas
(other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma,
or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307,
3.309(e). The Secretary of the Department of Veterans Affairs
has determined that there is no positive association between
exposure to herbicides and any other condition for which the
Secretary has not specifically determined that a presumption
of service connection is warranted. See Notice, 59 Fed.Reg.
341-346 (1994). See also 61 Fed.Reg. 41442-41449, and 61
Fed.Reg. 57586-57589 (1996).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veteran's Dioxin and Radiation Exposure Compensation
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-
29 (1984) does not preclude a veteran from establishing
service connection with proof of actual direct causation.
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see
also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997),
aff'g Ramey v. Brown, 9 Vet. App. 40 (1996).
In the instant claim, the veteran's service medical records
are devoid of treatment, findings, or diagnoses for
hypertrophy of the prostate. On discharge from active duty,
during a Medical Board examination, the veteran's
genitourinary system was evaluated as clinically normal.
After service, the veteran underwent a VA examination in
October 1969. No complaints, findings, or treatment related
to hypertrophy of the prostate was made. His genitourinary
system was found to be normal. No diagnosis of hypertrophy of
the prostate or any other prostate disorder was made.
The first medical evidence of record of treatment for the
veteran's prostate was in December 2002 at Wake Medical
Center when the veteran was seen complaining of an enlarge
prostate. The clinical impression was acute urinary
retention.
VA outpatient treatment records dated from December 2002 to
March 2004, were obtained and associated with the claims
folder. The records showed that the veteran had been treated
for lower urinary tract symptoms (LUTS). He underwent a
biopsy of the prostate in July 2001 and October 2003, and
both proved negative. He had elevated PSA readings, but no
diagnosis of prostate cancer was made.
There are no findings, treatment, or diagnosis of hypertrophy
of the prostate in service or for some time thereafter. The
first evidence of record of any prostate complaints was in
2002, many years after service. The only evidence that
associates the veteran's hypertrophy of the prostate to
service is the veteran's own statement of such. It is well
established that laypersons cannot provide an opinion
regarding diagnoses or the etiology of a medical diagnosis.
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Additionally, the Board notes that the record is devoid of
showing competent evidence of the manifestation of any
malignant tumors of the prostate, at any time after service.
Thus, the Board is precluded from further entertaining a
potential grant of service connection under the provisions
pertaining to presumptive service connection for chronic
diseases.
The evidence also does not show the claimed hypertrophy of
the prostate as one of the listed diseases for which service
connection can be granted on a presumptive basis under
38 C.F.R. §§ 3.307, 3.309(e). Hypertrophy of the prostate
also is not a presumptive disease related to Agent Orange
exposure. 38 C.F.R. § 3.309(e). As such, presumptive service
connection is not warranted based on exposure to Agent
Orange.
Of course, if it were demonstrated, by competent evidence,
that the veteran's hypertrophy of the prostate was due to
Agent Orange exposure, service connection could be granted on
that basis. The evidence of record however, does not show
such. In this regard, it is noted that the medical evidence
of record, as previously stated, indicates the onset of the
veteran's hypertrophy of the prostate, in 2002, many years
after service. Again, the veteran's statements alone link his
hypertrophy of the prostate to Agent Orange exposure, and he
does not have the medical expertise to provide an opinion as
a layperson. See Espiritu.
In sum, since the veteran did not present medical evidence
linking hypertrophy of the prostate to Agent Orange exposure,
to active service, nor does he have a chronic disease such as
prostate cancer that can be service-connected on a
presumptive basis, service connection for hypertrophy of the
prostate is not warranted.
ORDER
Service connection for hypertrophy of the prostate due to
Agent Orange exposure is denied.
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs